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S.M. Thakkar Vs. M.A. Baqui - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtGujarat High Court
Decided On
Case NumberSpecial Civil Appln. No. 1398 of 1965
Judge
Reported inAIR1969Guj74; (1968)GLR138
ActsConstitution of India - Articles 283 and 284
AppellantS.M. Thakkar
RespondentM.A. Baqui
Advocates: N.S. Parghi, Adv. for; N.M. Thakkar, Adv.
DispositionPetition dismissed
Excerpt:
.....by the high court, he was bound by the order made by the high court on the administrative side. before reading article 284, it is necessary to refer to the provisions of article 283, clause (2). it is well known that the constitution contemplates three funds (1) consolidated fund, (2) contingency fund, and (3) a fund, the amounts of which are to be credited to the public account. 11,100 which is lying in deposit with that court should be invested in a private bank, the prayer is directly opposed to the provision contained in article 284. from that standpoint, undoubtedly, the order of the learned civil judge is perfectly justified. there appears to be good reason behind this distinction. but, as already stated, petitioner is not inclined to have that recourse for some reason best..........fund, (2) contingency fund, and (3) a fund, the amounts of which are to be credited to the public account. we are not concerned with the first two kinds of funds in the present petition. as regards the third kind of fund, clause (2) of article 283 makes a provision. but that provision is not in respect of all amounts which are to be deposited in public account fund, but it deals only with those public moneys which are to be deposited to that account. clause (2) of article 283, inter alia, deals with (1) custody, (2) payment into the public account, and (3) withdrawal thereof. in regard to all these three matters in respect of public moneys which are to be paid into public account, clause (2) says that these matters and all other matters connected with or ancillary to such matters.....
Judgment:

Miabhoy, C.J.

1. This petition raises an important question relating to Court deposits, but, unfortunately, having regard to the facts of the case, it is not possible for us to decide that point finally so as to be of any help either to petitioner or to Court depositors in general

2. The facts leading up to the presentation of the petition are as follows: Petitioner entered into a contract for sale of an immovable property with two persona named (1) Mrs. Dhanbai Lallubhai, and (2) Suleman Lallubhai, and paid Rs. 900 by way of earnest money. Subsequently, she filed Special Suit No. 5 of 1963 in the Court of the learned Civil Judge, Senior Division, Baroda, for specific performance of that contract. At that time, she paid a sum of Rs. 19,100 in cash by way of deposit, to be credited to the above cause. The suit was ultimately compromised on 16th January 1965, by which, the purchase price was fixed at Rs. 47,000/-. Petitioner, having already paid Rs. 900 and deposited Rs. 19,100 in Court, deposited a further amount of Rs. 27,000 on 17th May 1965 towards the above cause, thus completing the sale price of Rs. 47,000/-. From out of the amount so lying in deposit, defendants of the above special suit withdrew Rs. 35,000 on 16th June 1965. The result of all the abovetransactions was that, a sum of Rs. 11,100/- is lying by way of deposit in the above Court, to the credit of the above cause. Now, it appears that, during the pendency of the above litigation, one Bai Jiji, claiming to be an heir of one deceased Lallubhai, apparently the predecessor-in-title of the two defendants in the special suit, filed Suit No. 1310 of 1961 in the Court of the learned Civil Judge, Junior Division, Baroda, for administering the properties of Lallubhai. That suit was dismissed and a regular Civil Appeal No. 433 of 1963 in the District Court at Baroda was also dismissed. Jijibai thereafter filed a second appeal in this Court, bearing No. 453 of 1965. In that second appeal, she got an order for stay restraining the defendants in the special suit from transferring the suit property so far as the interest of Jijibai was concerned. This order is being interpreted by petitioner as a direction that the amount of Rs. 11,100 is not to be paid to the above two defendants so long as the above suit continues. We are not concerned in the present petition as to whether this particular interpretation of the stay order is correct or otherwise From the facts aforesaid, it will be noticed that, at least from 16-6-65 till upto date, the sum of Rs. 11,100 is lying idle in Court and that, though petitioner has performed her part of the decretal direction, she is not in a position to get the sale deed executed and to recover possession of the property. From the point of view of the defendants in the above suit also, it is quite clear that the amount of Rs. 11,100 is lying in Court deposit idly without earning any interest. Therefore, it appears that, petitioner made an application on 24th September 1965 before the learned Civil Judge, Senior Division, Baroda, requesting that the above amount of Rs. 11,100 'be ordered to be invested in the Central Bank of India, Baroda Branch, for periods of six months at each time.' On the same day, the learned advocate for defendants made an endorsement below that application stating that he had no objection if the amount is deposited as prayed for by petitioner. However, in spite of such consent, the learned Judge rejected the application of petitioner for depositing the amount in the above Bank, by his order dated 28-9-65. That order is impugned in the present petition. In support of the above order, the learned Judge has relied upon an endorsement made by this High Court on the administrative side below a letter of the Legal Department, bearing No. CCD. 1063/5413 dated 22nd October 1963, by which the attention of the High Court was drawn to the provisions contained in Article 284, Clause (a), (sic Clause (b)). He thought that the matter was administrative and because theobjection raised by the Legal Department was endorsed by the High Court, he was bound by the order made by the High Court on the administrative side. The grievance of Mr. Parghi is, to some extent, justified, inasmuch as the learned Judge relied upon an administrative endorsement made by the High Court in a Judicial matter. The correct thing to do in such a case was for the learned Judge to interpret or to have regard to the provisions contained in Article 284(b), and then pass a judicial order. Therefore, in order to dispose of the present petition, we have to turn to the provisions of Article 284, Clause (b) which is relevant for the purposes of the present petition. Before reading Article 284, it is necessary to refer to the provisions of Article 283, Clause (2). It is well known that the Constitution contemplates three funds (1) consolidated fund, (2) contingency fund, and (3) a fund, the amounts of which are to be credited to the public account. We are not concerned with the first two kinds of funds in the present petition. As regards the third kind of fund, Clause (2) of Article 283 makes a provision. But that provision is not in respect of all amounts which are to be deposited in public account fund, but it deals only with those public moneys which are to be deposited to that account. Clause (2) of Article 283, inter alia, deals with (1) custody, (2) payment into the public account, and (3) withdrawal thereof. In regard to all these three matters in respect of public moneys which are to be paid into public account, Clause (2) says that these matters and all other matters connected with or ancillary to such matters 'shall be regulated by law made by the Legislature of the State, and, until provision in that behalf is so made, shall be regulated by rules made by the Governor of the State.' Then comes Article 284 which is as follows:

'284. -- All moneys received by or deposited with -

(a) any officer employed in connection with the affairs of .... a State in his capacity as such, other than revenues or public moneys raised or received by the ............Government of the State, ......... or

(b) any court within the territory of India to the credit of any cause, matter, account or persons.shall be paid within the public account of ....... the State ..............'

Now, there is no doubt whatsoever that this is a Constitutional direction which Courts are bound to carry out in regard to moneys received or deposited with them. The direction is clear and unambiguous. The direction is that, all such moneys shall be paid into the public account of the State. Therefore, in so far as petitioner applies to the Civil Courtthat the amount of Rs. 11,100 which is lying in deposit with that Court should be invested in a private bank, the prayer is directly opposed to the provision contained in Article 284. From that standpoint, undoubtedly, the order of the learned Civil Judge is perfectly justified. But, however, there is one aspect of the matter which needs to be mentioned. It is noteworthy that, whereas Clause (2) of Article 283, which deals with public moneys, contains provisions not only regarding payment of public moneys into the public account, but, also deals with the questions of their withdrawal and all other matters connected with or ancillary to the matters of custody, payment and withdrawal, Article 283, 284? deals only with the subject of payment into the public account but does not deal with the question of withdrawal therefrom or other allied matters. The Constitution, therefore, has made a clear distinction between public moneys on the one hand and moneys which are received or deposited, inter alia, with Courts to the credit of matters mentioned in Clause (b) in the matter of withdrawal thereof or such allied matters. There appears to be good reason behind this distinction. Whereas public moneys must be dealt with at all stages in accordance with law, so far as non-public moneys are received or deposited, obviously, they cannot be dealt with at all stages by provision of law but must necessarily be dealt with according to the facts of each particular cast. Therefore, the Courts of law are not precluded from passing proper orders in regard to investment of moneys which may lie idle before them, provided of course, in doing so, they do not offend the provisions contained in Article 284(b). So long as moneys remain received by Court or deposited with it, those moneys must remain in public account. But, if on the facts of a particular case, the parties want that the moneys should be invested in some other way, then, the Court is not entirely helpless in the matter, provided the first step that it takes is that the moneys cease to have their character of receipt by or deposit with the Court Now, on the facts of the present case, we cannot give any direction of the kind which petitioner wants. Petitioner, as already stated, is aggrieved by the order of the Court rejecting her application for depositing the moneys lying in Court as a deposit with a private bank. That, obviously, the Court cannot do. But, in the present case, if both the parties had agreed for the withdrawal of the amount and that way, the amount were to cease to retain its character as a receipt or deposit, then, suitable orders could have been passed by the Court. But, as already stated, petitioner is not inclined to have that recourse for some reason best knownto herself. As we have already pointed out that petitioner has interpreted that stay order granted in Second Appeal No. 453 of 1965 as an injunction restraining the withdrawal of the above deposit Under the circumstances, in our judgment, no order can be passed in favour of petitioner and the rule must be discharged.

3. Rule discharged.


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